PORTSMOUTH — A judge issued a 33-page ruling in response to a nine-count lawsuit filed against the city by Toyota dealer Jim Boyle.

The decision by Rockingham County Superior Court Judge Will Delker centers around a city sewer line running through Boyle's Greenleaf Avenue dealership property and whether a berm constructed around the sewer line caused some of the property to flood.

The judge found in favor of both parties on different points and further legal debate is expected to be heard during a trial early next year.

The judge found the following historical facts to be true:

• In 1967, the state owned Boyle's property and the Board of Education, which was considering a vocational school for the site, granted the city permission to run the sewer line underground, along the rear of the property. Boyle and the city now agree that the state “never expressly authorized the conduct of the Board of Education” in granting that permission.

• In 1983, the state sold the property to three parties “excepting the rights of ordinary public utilities servicing the premises.” The three parties sold the property to MSM Brothers in 1988 and the deed at the time did not mention the sewer line, or utility easements.

• In 2003, MSM sold the property to Boyle with a deed that does not mention the sewer line, or the easement exceptions.

Court records state that Boyle didn't discover the sewer lines until 2004, when he told City Attorney Robert Sullivan that he'd give Portsmouth an easement for them, in exchange for Portsmouth making “Boyle's development plans easier.” Portsmouth denies Boyle ever granted an easement before filing his lawsuit that alleges Portsmouth trespassed, took permanent and temporary control of his property, committed negligence and an “overburdening easement.”

Boyle now alleges that he granted the easement until the legal case is resolved, while the city denies that claim. That debate is significant with regard to the city's assertion that it had a “prescriptive easement” for the sewer line by virtue of continuous use of it on Boyle's property for more than 20 years.

Delker's recent decision finds that the city does not have a prescriptive easement for the sewer system because prior agreements were not adversarial. In essence, the judge found, the agreement can't be both mutual and prescriptive.

The judge also ruled that the court must determine at trial whether Boyle bought the property at a discounted price because of the sewer line, because he would not be entitled to that discount and allowed to terminate the sewer right of way.

“He is not entitled to a windfall,” the judge wrote.

Delker found in favor of Portsmouth with respect to Boyle's trespassing allegation. In his legal ruling, the judge wrote that the sewer line exists due to a license, by virtue of the fact that the city installed the pipes and created a berm with the intention of the sewer system being permanent. Because that action constitutes a license, there is no trespassing, the court found.

The judge also agreed with Portsmouth that the existence of the sewer line does not constitute a permanent or temporary taking because it was noted on a past deed, so no subsequent owner could say they were unaware of it.

With regard to flooding on the property, which Boyle claims is due to the sewer system, the judge ruled it must be determined at trial whether Portsmouth was entitled to pool water on Boyle's property, whether it did pool the water, or if the flooding was a result of “natural forces.” In August, the Superior Court approved a separate but related agreement between Toyota of Portsmouth and the state Department of Environmental Protection, allowing for further development of Boyle's auto dealership property, over the city's objections.